Library Briefing Library of the European Parliament 22/01/2013

"" as connecting factor in EU civil justice measures

In the EU's recent Succession Regulation, notion of "habitual residence" as a connecting habitual residence is the key connecting factor factor emerged under the influence of the for determining both which courts have Hague Conference and was first used in 1902. and what law is applicable to a trans- As a matter of policy, the Hague Conventions national succession. Habitual residence is increa- do not define the notion, to avoid rigidity. The singly being used as a connecting factor in EU notion has been taken over by numerous legislation which includes "" rules. national laws and, recently, by EU law. versus Conflict rules and their harmonisation Domicile is defined as a "permanent ". In any transnational legal relationship it is Every person obtains a domicile at birth and in always necessary to determine which legal order to prove a change, a court requires system should apply (conflict of laws) and evidence not only of the new residence, but also which country's courts should decide a case of a firm intention to live there permanently, (conflict of ). For this purpose, understood to be a person’s actual state of various "connecting factors" are employed (e.g. mind. A person can have only one domicile at a the place where a was concluded). time and cannot be without domicile. It is However, every country has its own system of often impossible to ascertain domicile without conflict rules, often different from the systems a court decision, and the rules are often viewed of other countries. Therefore, the same case as artificial and unpredictable. (e.g. a succession dispute) could be treated differently depending on the court which In contrast to domicile, nationality is relatively hears a case. This is because different national easy to determine both for the interested conflict-of-laws rules may use different person and for third parties. However, one connecting factors to determine which law person can have more than one nationality applies, possibly leading to different outcomes. and a person may also be considered stateless. That frustrates the whole system of conflict rules, A perceived weakness of both nationality and leading to unpredictability and incoherence. domicile is their rigidity in connecting a person In order to avoid such situations, member to their country of origin. This is considered states of the Hague Conference on Private inadequate especially in the context of free have elaborated uniform movement of persons. According to a recent conventions containing harmonised conflict report, over 12 million EU citizens live in a rules, starting with the 1902 conventions on different Member State (MS) than that of their the conflict of laws regarding and the nationality and they are often integrated into conflict of laws and jurisdictions regarding the social environment of their country of separation and divorce. In recent years, residence. Therefore, determination of their unification of conflict rules has been fostered to marry or to make a will according at EU level, in the form of regulations. to the law of the MS of their nationality is considered inappropriate. In particular, it could Personal connecting factors lead to discrimination of EU citizens who are Conflict rules can provide for various factors residents but not nationals of a given MS. connecting a person with a legal system. Habitual residence is viewed as superior to Traditionally, the most frequently used ones nationality and domicile as a connecting factor include domicile (in countries), owing to its flexibility. However, precisely nationality (in civil law countries), place of because it is not defined strictly, it can be residence, and place of temporary residence. The difficult to prove in more difficult cases.

Author: Rafał Mańko 130427REV1 Contact: [email protected] Disclaimer and Copyright: This briefing is a summary of published information and does not necessarily represent the views of the author or the European Parliament. The document is exclusively addressed to the Members and staff of the European Parliament for their parliamentary work. Links to information sources within this document may be inaccessible from locations outside the European Parliament network. © European Union, 2013. All rights reserved. http://www.library.ep.ec – http://libraryeuroparl.wordpress.com

Library Briefing Habitual residence as connecting factor

The Succession Regulation proposed regulations on jurisdiction, Habitual residence occupies a prominent applicable law and the recognition and position in the recently adopted Succession enforcement of decisions in matters of Regulation. In particular, it provides that the matrimonial property regimes and regarding courts of the state in which the deceased had the property consequences of registered their habitual residence at the time of death partnerships; as well as in the proposal for shall have, in principle, jurisdiction over the amending the Insolvency Regulation. entire succession and that the applicable law Residence or habitual residence is also used as should also, in principle, correspond to the a connecting factor in EU public law deceased's habitual residence. (Details of the legislation, including social security Regulation can be found in a December 2012 coordination, the European Arrest Warrant, as Policy Department note.) well as the Staff Regulations of EU officials. The preamble to the Regulation indicates that Habitual residence in CJEU when assessing habitual residence, all Within the private international law field, the circumstances of the deceased's life, both at Court of Justice of the EU (CJEU) has shed and before their death, ought to be some light on the notion of habitual residence considered. Habitual residence should be in the context of child abduction. The Court based on a "close and stable connection" with underlined the importance of the integration a state. Factors to be taken into account of a child into their social and family include the duration, regularity, conditions and environment, pointing out that habitual reasons for staying in a country. Habitual residence is a question to be decided by the residence in someone's country of origin can national court in light of the specific factual be maintained through social and family ties, circumstances. According to the CJEU, such despite their having moved abroad. The factors may include the duration, regularity, nationality of the deceased and the location of conditions and reasons for the child's stay in a their assets could be a decisive factor in the given place and the family's move there, the case of persons who have lived in many states child's nationality, the place where they attend or travelled between different states without school, what languages they speak, as well as settling permanently. their family and social relationships. Other EU legislation CJEU case law in other fields of law could be of Habitual residence has been used as principal assistance in the area of private international or subsidiary connecting factor in EU law. Within the sphere of social security, the legislation concerning conflict rules, including: Court underlined that habitual residence has  Regulation on the law applicable to an autonomous meaning under EU law. It contractual obligations (Rome I); indicated that it corresponds to the habitual  Regulation on the law applicable to non- centre of interests of a person, adding that in contractual obligations (Rome II); order to assess where someone's habitual  Regulation on the law applicable to divorce residence is located, the length of residence, and separation ("Rome III"); the length and purpose of absence, as well as  Regulation on jurisdiction and the the person’s apparent intention must be taken recognition and enforcement of judgments into account. Under the Staff Regulations of EU in matrimonial matters and the matters of officials the CJEU has ruled that the place of parental responsibility; and habitual residence is the place where one has  Regulation on jurisdiction, applicable law, established a permanent centre of interests recognition and enforcement of decisions with the intention of giving it a lasting and cooperation in matters relating to character. Finally, in the context of the maintenance obligations. European Arrest Warrant, the CJEU found that a person is "resident" in a MS when they have The notion of habitual residence also appears established their "actual place of residence" in a number of current legislative proposals in there. the field of conflict rules, including in the

Author: Rafał Mańko 130427REV1 Contact: [email protected] Page 2 of 2